Tela (Migration)

[2020] AATA 825

Tela (Migration) [2020] AATA 825 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Meharit Tela

VISA APPLICANT:  Miss Selam Mola Gebreslasie

CASE NUMBER:  1701235

DIBP REFERENCE(S):  OSF2015/075505

MEMBER:Justine Clarke

DATE:5 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.311 of Schedule 2 to the Regulations

·cl.300.321 of Schedule 2 to the Regulations

Statement made on 05 February 2020 at 4:25pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) – Subclass 300 (Prospective Marriage) – dependent child – sister’s child – deceased parents – change of surname – no evidence of adoption – legal guardianship – parties married after application – lack of evidence – claim of dual households – limited financial documents available – applicant reliant on support – decision under review remitted   

LEGISLATION

Migration Act 1958 (Cth), ss 5CA, 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 300.311, 300.321, rr 1.03, 1.04, 1.12

CASES

Huang v MIMA [2007] FMCA 720
Vo v Minister for Home Affairs [2019] FCAFC 108

Zeng v MIMIA [2005] FMCA 546

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made, on 17 November 2016, by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. On 11 September 2015, Mr Amdemichael Nega Adane applied for the visa on the basis of his prospective marriage with his sponsor, Ms Meharit Alem Tela who is the review applicant in the present case. Miss Selam Mola Gebreslasie was included as a secondary applicant in that application. She is the visa applicant in the present case.

3. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The secondary criteria include cl.300.311 and cl.300.321.

4. The review applicant provided the Tribunal with a copy of the primary decision that was made in respect of Miss Gebreslasie. On 17 November 2016, the delegate made a decision to refuse to grant the visa. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.300.311 of Schedule 2 to the Regulations. Clause 300.311 requires that, at the time of application, the visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.300.211 to 300.212 and cl.300.214 to 300.216. The delegate was not satisfied that, at the time of application on 11 September 2015, the visa applicant was a member of the family unit of Mr Adane within the meaning of r.1.12 because the delegate did not consider that the visa applicant met the requirements in r.1.12(1)(b) or in r.1.12(1)(e)(ii) or (iii). Accordingly, the delegate found that the visa applicant did not meet cl.309.311 of Schedule 2 to the Regulations. In the circumstances, the delegate did not consider it necessary to make findings about the additional requirements of subdivision 300.3, including time of decision criteria.

5. On 24 January 2017, the review applicant applied to the Tribunal for review of the decision to refuse the visa applicant the visa. The review applicant has been unrepresented in this review.    

6. On 23 July 2019, the review applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Adane in person and the visa applicant Miss Gebreslasie by telephone from Ethiopia. The review applicant had also requested the Tribunal to hear oral evidence from Ms Mebrat Nega Adane, Mr Adane’s sister, by telephone from Ethiopia but due to time constraints, the Tribunal was not able to hear from this witness. The two infant children—one being only a month old—of the review applicant and Mr Adane also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Tigrignaian) and English languages.

7. The Tribunal notes that, at the conclusion of the hearing, the Tribunal granted the review applicant further time to submit further evidence in support of the review and that further evidence was submitted on 25 July 2019.

8. On 4 December 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Act. The letter was sent by email and explained that the timeframe for responding in writing was 18 December 2019. However, as the email could not be delivered to that email address that day, later that day, the Tribunal sent a letter pursuant to s.359A to a postal address. This letter explained that the timeframe for responding in writing was 27 December 2019.

9. On 20 December 2019, the review applicant sought an extension of time of one week in which to provide comments or response to the s.359A letter.

10. However, before the Tribunal responded in writing to the request for an extension of time, the review applicant submitted a response to the s.359A letter. The response was dated 23 December 2019 but received by the Tribunal on 24 December 2019.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether, at the time of application on 11 September 2015, the visa applicant was a member of the family unit of Mr Adane.

13. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.300.321—a time of decision criterion—as well.

    Regulation 1.12(1)

14. The expression ‘member of the family unit’ is defined in r.1.12. As the combined visa application was lodged prior to 19 November 2016, the former version of r.1.12 applies. This relevantly provides:

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub regulation called the family head) if the person is:

    (a) a spouse or de facto partner of the family head; or

    (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)        does not have a spouse or de facto partner; and

    (ii)       is usually resident in the family head’s household; and

    (iii)      is dependent on the family head.

15. In this case, Mr Adane—not the review applicant—is the so-called ‘family head’. This is because cl.300.311 provides:

    The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria …

    Which paragraph in r.1.12(1) applies?

16. There is no evidence before the Tribunal to suggest that r.1.12(1)(a) or (c) apply.

17. On the review applicant’s own evidence, the visa applicant Miss Gebreslasie, is her niece. In her signed statement delivered to the Tribunal on 2 March 2017, the review applicant claimed, ‘Miss Selam is the daughter of my biological sister who passed away’.

18. At the hearing, both the review applicant and the visa applicant gave consistent oral evidence in this regard, telling the Tribunal the names of the visa applicant’s parents and explaining that the visa applicant’s late mother had been the review applicant’s sister and that both of the visa applicant’s parents were dead. The review applicant told the Tribunal that the visa applicant’s mother had died in 2006 and that her father died in 2011.

19. Although not mentioned in the primary decision, the Department had some ‘serious concerns’ about the visa applicant’s identity stemming from her school records. Folio 142 of the Department’s file states:

    School Records – Selam Mola GEBRESLASIE

    On 3/10/2016 a representative of IOM attended the issuing office and obtained the following information:

    ·The applicant enrolled at the school on 26/08/2009 GC [presumably Gregorian Calendar]

    ·The applicant is no longer a student at the school having left on 27/06/2016 GC

    ·There was no record in relation to the applicant’s age provided at time of enrolment

    ·There was no record in relation to who the applicant’s parents were or who the guardian of the applicant was

    ·The school advised that the applicant changed her father’s name from ‘Alem Kahsay’ to ‘Mola Gebresilassie’ by court order and provided evidence of this to the school to support the name change

    Based on the above information the referral is verified SERIOUS CONCERNS as it is unclear as to why the dependent applicant has changed her name and I am concerned that the name has been changed to show a claimed family relationship which does not exist noting the strong Ethiopian naming conventions which suggest that by changing your second and third names you have changed your family history and linage.  

20. The folio contains a handwritten note stating that a ‘NJ [presumably No Jurisdiction] letter’ had been sent on 13 October 2016. The Tribunal notes that there is no copy of any such s.57 letter on the hard copy Departmental file.

21. At the hearing, the Tribunal raised this issue with the review applicant. She gave oral evidence that the visa applicant had changed her surname because originally, Alem Kahsay, whom she described as a cousin of the visa applicant’s father, had registered the visa applicant at the school, essentially presenting himself as the visa applicant’s father. She said that later she and the visa applicant had agreed that it was important for the visa applicant to have the correct name of her father and of her grandfather and that is why the visa applicant’s name was changed. She noted that there was a court document noting the name change.   

22. The Tribunal notes that there is a copy of the translated Court document on the Department’s file (ff.143–146). In that document, Mr Alem Kahsay Debesu is said to have described the visa applicant as ‘his young sister’s daughter’ who had been ‘raised with him, since her babyhood’.

23. The Tribunal notes the inconsistency between the review applicant’s description of Alem Kahsay as ‘a cousin of the visa applicant’s father’ and the description in the Court document that he is her maternal uncle. 

24. As noted earlier, the Tribunal sent a letter pursuant s.359A to the review applicant on 4 December 2019. The letter outlined the inconsistent information about the relationship between the visa applicant and Mr Alem Kahsay and explained that the inconsistency may cause the Tribunal to have doubts about the visa applicant’s identity and/or to impugn the review applicant’s general credibility. The Tribunal explained that if it relies on this information in making its decision, it may not be satisfied that the visa applicant is a relative of the review applicant and it may conclude that the visa applicant does not meet the definition of ‘member of the family unit’ in r.1.12. This in turn may lead the Tribunal to find that the visa applicant does not meet cl.300.311 of Schedule 2 to the Regulations. This would lead the Tribunal to affirm the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

25. In her response of 23 December 2019, the review applicant commented:

    Miss Selam Mola Gebreslasie is the daughter of my late sister Ms Redien Tela. Mr Alem Kahsay is close relative of Mr Mola Gebreslasie and used to live in the same compound.

    When Selam was first enrolled at school, Mr Alem Kahsay took her to the school and she was enrolled as Selam Alem Kahsay. But later Selam registered in the name of her biological father as Selam Mola Gebreslasie.

    As I explained above, Redien my late sister is Selam’s birth mother and Selam is my maternal niece. To my knowledge, Mr Alem Kahsay is not Salem’s maternal uncle i.e. Mr Alem doesn’t have any maternal relationship with Selam and he is a relative of her father.

26. The Tribunal accepts the veracity of the review applicant’s evidence. She presented as an honest witness at the hearing and the Tribunal has no reason to doubt her explanation. It is possible that the relationship between the visa applicant and Mr Alem Kahsay was not correctly noted in the Court document itself or not correctly translated in the English translation.  

27. For the reasons that follow, the Tribunal shares the implicit view of the delegate that the review applicant’s claims suggest that either r.1.12(1)(b) or (e) are the applicable provisions.

    Assessment of r.1.12(1)(b)

28. The Tribunal considers that, at the time of application, the visa applicant was not a dependent child of the family head or of a spouse or de facto partner of the family head. Accordingly, r.1.12(1)(b) is not met. The Tribunal takes this view because the Tribunal is not satisfied that the visa applicant meets the definition of ‘dependent child’ in r.1.03.

29. The opening words of this definition state, ‘dependent child, of a person, means the child or step-child of the person’. The term ‘child’ is partly defined in s.5CA of the Act and ‘step-child’ is defined in r.1.03, with the definitions generally requiring that the parent-child relationship exists by blood, adoption or through a partner relationship.[1]

    1See the definition of the term ‘child’ in s.5CA of the Act, the definitions relating to parent and child in r.1.14A of the Regulations (covering step-parents and adoptive relationships) and the definition of the term ‘step-child’ in r.1.03 of the Regulations.

30. On the review applicant’s own evidence mentioned above, the visa applicant is not her ‘child’ or Mr Adane’s ‘child’ through blood.

31. The term ‘adoption’ is defined in r.1.04. For present purposes, the definition requires formal adoption arrangements to have been made in accordance with the law of another country or the arrangements to have been made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter.

32. In the primary decision, the delegate noted:

    A court document presented with the application and dated 26/04/2011 states that on 07/03/2011, Ms Meharit Alem was given the responsibility to be a guardian to Merhawit Mola, Kesnet Mola and Selame Mola. This information has been reviewed and details noted as follows:

    ·     In her migration application, the secondary applicant’s mother was said to be deceased while the father was noted to be alive but financially challenged to support the said persons. Subsequently, in this application, the sponsor has declared that the secondary applicant’s father passed away and has provided a death certificate dated 28/07/2016 to show that the secondary applicant’s father died on 03/02/2011.

    ·     The court document provided only makes reference to guardianship consent and not a formal adoption of the said persons. The guardianship consent provided does not bear any endorsement by the Ministry of Women’s, Children’s and Youth Affairs, which is a requirement for an adoption to be valid in Ethiopia.

33. Accordingly, the delegate considered that there was no evidence to support that the visa applicant had been adopted formally or customarily and so the delegate found that the visa applicant had not been so adopted and so could not be considered as an adopted child for the purpose of r.1.12(1)(b).

34. In the review applicant’s undated, signed statement, delivered to the Tribunal on 2 March 2017, the review applicant stated:

    I did not adopt her. I took legal guardianship as an aunt not as adopter. Endorsing by Ministry of Women, Children and Youth Affair doesn’t concern to this case.

35. In that same statement she claimed:

    I, Maharit gave responsibility to my fiancé (husband now) Mr Amdemichael to look and take care of Miss Selam after we engaged and we agreed Miss Selam to [be] under his care and to be included in his application to migrate to Australia as [a] dependent child.

36. She further explained:

    Miss Selam was not adopted by Mr Amdemichael my husband. I was legal guardian of Miss Selam. She lived with Mr Amdemichael based on our discussion and [her] willingness to be under his care.

37. On the review applicant’s own evidence, the visa applicant is not her or Mr Adane’s ‘child’ through adoption.

38. The term ‘step-child’ is defined in r.1.03. As noted above, it requires that the parent-child relationship exists through a partner relationship, either as ‘the child of the parent’s current spouse or de facto partner’ or ‘the child of the parent’s former spouse or former de facto partner’. Neither of these scenarios is applicable. Accordingly, the Tribunal considers that the visa applicant is not the ‘step-child’ of Mr Adane or the review applicant. 

39. The delegate appears to have concluded that the only applicable paragraph in r.1.12(1) for full assessment is r.1.12(1)(e). The Tribunal also takes this view.

    Assessment of r.1.12(1)(e)

40. The opening words—or ‘chapeau’—of this paragraph require that the visa applicant be ‘a relative of the family head or of a spouse or de facto partner of the family head’. The requirements set out in paragraphs (i)–(iii) need be considered only if the visa applicant meets this threshold definition.

    Does the visa applicant meet the threshold definition?

41. The terms ‘relative’ and ‘close relative’—the latter term is used within the definition of ‘relative’—are both defined in r.1.03. The term ‘relative’ expressly includes a niece or a step-niece.

42. The Tribunal accepts the review applicant’s evidence that the visa applicant is her niece. However, in order to meet the requirement in the opening words of paragraph (1)(e), the visa applicant must be either the step-niece of the family head—Mr Adane—or the niece of a spouse or de facto partner of the family head. While the term ‘step-niece’ is not defined in the Regulations, it is arguable that, as with the term ‘step-child’, the relationship exists through a partner relationship—either the current spouse or de facto partner or the former spouse of de facto partner.

43. The review applicant and Mr Adane were not spouses at the time of application. Indeed, Mr Adane applied for a Prospective Marriage visa. Further, the review applicant submitted a certified copy of their marriage certificate which evidences them as having been married on 4 February 2017—almost a year and a half after the date of application on 11 September 2015.   

44. Accordingly, in order for the threshold requirement to be met, it is necessary that, at the time of application, the review applicant and Mr Adane were in a de facto relationship for the purposes of the Act. The delegate did not address this issue in the primary decision.

45. The Tribunal raised this issue with the review applicant at the hearing. The review applicant gave oral evidence that there was social recognition of the relationship, telling the Tribunal that both families knew about the relationship. She also explained that, at the time, she was pregnant with her first child. The Tribunal considers both the review applicant and Mr Adane to be credible witnesses so it did not request or require documentary evidence to substantiate the claim that, at the time of application, they had been in a de facto relationship.

1. The Tribunal is satisfied, from the evidence before it, that the review applicant and Mr Adane were de facto partners at the time of application. (The Tribunal notes that r.2.03A—additional criteria applicable to de facto partners—is not applicable in the case of a Prospective Marriage visa: r.2.03A(3)(a)). Accordingly, the Tribunal considers that the threshold definition is met.     

   At the time of application, did the visa applicant have a spouse or de facto partner? Now?

2. At the hearing, the review applicant gave oral evidence that the visa applicant was not married or in a de facto relationship and that the visa applicant had never been married or in a de facto relationship. When asked whether the visa applicant was married, Mr Adane similarly told the Tribunal that the visa applicant was not married. The visa applicant also gave consistent oral evidence in this regard.

3. There is no evidence before the Tribunal to suggest that, at the time of application or at the time of this decision or at any stage in the intervening period, the visa applicant was married or in a de facto relationship.

4. In the circumstances, the Tribunal accepts the veracity of the oral evidence and finds that, at the time of application on 11 September 2015, the visa applicant did not have a spouse or de facto partner and that, at the time of this decision, she does not have a spouse or de facto partner.

5. The Tribunal is satisfied that r.1.12(1)(e)(i) was met at the time of application and continues to be met at the time of this decision.

   At the time of application, was the visa applicant usually resident in Mr Adane’s household? Now?

6. The expression ‘usually resident’ and the term ‘household’ are not defined in the Act or Regulations. Accordingly, each is to be given its common law meaning. The notion conveyed by the expression ‘usually resident’ is of a place where, in the ordinary course of a person’s life, he or she regularly or customarily lives. The Macquarie Dictionary gives a number of definitions for the term ‘household’ when it is used as a noun. The two definitions which seem relevant here are ‘the people of a house collectively’ and ‘a domestic establishment’.

7. In the primary decision, the delegate stated that he was not satisfied that, at the time of application, the visa applicant was usually resident in Mr Adane’s household. The delegate did not give clear reasons in this respect.

8. At the hearing, the review applicant gave oral evidence that, after her engagement to Mr Adane and before she returned to Australia, she had left the visa applicant with Mr Adane. Both Mr Adane and the visa applicant gave consistent oral evidence.

9. The review applicant explained that the visa applicant started living with Mr Adane at his parents’ house. The Tribunal asked where this property was located and the review applicant gave the address as ‘[Address 1]’. Both Mr Adane and the visa applicant gave consistent oral evidence as to the location of the property.

10. The review applicant told the Tribunal that the visa applicant had moved into this property on 18 November—or October—2014. The Tribunal notes that the review applicant has given consistent evidence in this regard; the primary decision states that the review applicant claims that the visa applicant moved in to reside with Mr Adane on 18 November 2014. The Tribunal is not troubled that the review applicant changed her answer at the hearing, having first stated November and then changing this to October. This is because the Tribunal is mindful that, at the time of the hearing, the review applicant was the mother of a month-old baby. The Tribunal does not consider that the review applicant’s credibility is in issue for this minor slippage in dates.

11. The visa applicant also told the Tribunal that she had started living with Mr Adane ‘in around November’, although she gave the year as 2007. The Tribunal is not troubled by the visa applicant having given a different year. The Tribunal notes that, after the hearing had concluded and all parties had left the room and the audio recording had been switched off, Mr Adane re-entered the hearing room and told the presiding Member that he had recalled that the visa applicant had given the wrong date as she had used the Ethiopian calendar. He explained that the visa applicant does not know the Gregorian calendar. The Tribunal accepts this explanation. The Tribunal notes that there is a gap of seven to eight years between the Ethiopian and Gregorian calendars. Accordingly, the visa applicant’s oral evidence that she had started living with Mr Adane in November 2007 (according to the Ethiopian calendar) is roughly equivalent to November 2014 (according to the Gregorian calendar).

12. The review applicant told the Tribunal that, at the time of application on 11 September 2015, the visa applicant was living with Mr Adane at his family’s house.

13. The review applicant, Mr Adane and the visa applicant all gave consistent oral evidence that the visa applicant continues to reside at this property, with Mr Adane’s sister. Mr Adane explained that, when he came to Australia on 25 December 2016, he had left the visa applicant to live at that property.

14. The Tribunal notes that Mr Adane’s sister, Ms Mebrat Nega Adane, had wanted to give oral evidence to the Tribunal and the Tribunal speculates that it is likely that she would have given corroborating evidence about the visa applicant’s living arrangements.

15. Although not mentioned in the primary decision, the Department had some serious concerns about the visa applicant’s usual residence stemming from the ‘Kebele ID Card’ which had been submitted in respect of the visa application. Folio 142 of the Department’s file states:

    Kebele ID Card

    On 4/10/2016 a representative of IOM attended the issuing office and obtained the following information:

    ·     The head of house is recorded as Nega Adane

    ·     Nega Adane is listed as the father of Amedemichael Adane

    ·     The dependent is not listed as a resident of the house

    ·     There is no information on the household records in relation to the dependent applicant

    Based on the above information the referral is verified as SERIOUS CONCERNS as there is no information available to support that Selam is dependent on the applicant as claimed.

16. In the review applicant’s signed statement, delivered to the Tribunal on 2 March 2017, the review applicant stated:

    When Selam was moved to live with Mr Amdemichael Nega Adane my husband, her name was still at her old address and was not registered as a resident of the Kebele where she moved to, because, Mr Amdemichael did not see it that it was important to be registered after she moved to live with him. That was the reason that Selam Mola Gebreslassie was not listed as a resident of the house.

    Yes, it is true that the name of the house where Mr Amdemichael lived was in the name of his father Mr Nega Adane. When Selam moved to live there, although Mr Amdemichael was responsible, his father Mr Nega Adane accepted Selam to live with them.

    When Mr Amdemichael Nega Adane my husband was granted Prospect Marriage Visa, while Selam Mola Gebreslassie my niece’s case was refuse[d], Mr Amdemichael took Selam to live with Ms Mebrat Nega Adane his sister until her case heard[.] 

17. At the hearing, the Tribunal explained to the review applicant the delegate’s concerns as outlined in folio 142 on the Department’s file and provided her with an opportunity to comment. The review applicant told the Tribunal that, in Ethiopia, it was normal for people to move from house to house and not register those changes. She said that it was only when identification was needed, that someone would register their address. The Tribunal clarified whether it was the review applicant’s contention that the visa applicant had been living at that address at the relevant time, even though there was no record of it. The review applicant gave oral evidence in the affirmative, adding that because the visa applicant was then not an adult, and so did not need identification, she had not been registered at the property.

18. Mr Adane gave similar oral evidence. He explained that the visa applicant had not been registered in the Kebele because ‘we don’t register children in the Kebele’. He said that Ethiopia was not like Australia and that children do not need to be registered when they move from one place to another.

19. Having had the benefit of hearing the oral evidence of the review applicant, Mr Adane and the visa applicant, the Tribunal is satisfied that, at the time of application on 11 September 2015, the visa applicant was residing with Mr Adane at his family’s property at ‘ [Address 1]’ in Ethiopia and that, at the time of this decision, she continues to live at this property.

20. Since 25 December 2016, Mr Adane has lived in Australia. Since arriving in Australia, he has married the review applicant and they have had two young children. His movement records which are on the Tribunal’s file indicate that he has not departed Australia.

21. Accordingly, the next question is whether, at the time of this decision, the visa applicant could be said to be usually resident in Mr Adane’s household.

22. The Department’s Procedures Advice Manual (PAM3) outlines the meaning given to the term ‘household’ by the Department for the purpose of r.1.12(1)(e)(ii). It states:

    The family head’s household must be considered their current place of residence. Therefore, it is not possible for a person to usually reside in the household of the family head when the two persons have been living apart for an extended period of time.

    For example, if the family head had been residing overseas for several months or years, but had maintained an additional residence in their home country, that additional residence cannot be considered their household for the purposes of regulation 1.12(1)(e)(ii). Family members who are living in that additional residence cannot be considered usually resident in the family head’s household.

23. The Tribunal is mindful that, while it may have regard to the Departmental guidelines, these guidelines are not binding on the Tribunal. Rather, the Tribunal should consider the individual circumstances of the case according to the law.

24. The Tribunal considers it significant that r.1.12(1)(e)(ii) relevantly requires the relative of the spouse or de facto partner of the family head to be ‘usually resident in the family head’s household’ not ‘usually resident in the family head’s residence’ (emphasis added). The Macquarie Dictionary defines the word ‘residence’ as ‘the place, especially the house, in which one resides’. This is to be contrasted to the definitions given for ‘household’ which were referred to earlier, namely, ‘the people of a house collectively’ and ‘a domestic establishment’. These latter definitions suggest that a ‘household’ may be a person’s family home.

25. The Tribunal considers that the dictionary meanings support the contention that the family head’s residence and household can be different places. Further, the Tribunal is aware of the comments made by another Member of the Tribunal in a similar case, being AAT reference 1706166. In that decision, the Tribunal considered that ‘there can be any number of separate households’ and that it cannot have been the intention for the definition of ‘member of the family unit’ to have ‘worked against the visa applicant in a situation such as this over which he had no control’, there having been a lengthy delay of many years from the time of application to the time of consideration by the Tribunal.

26. Accordingly, the Tribunal considers that it is open to it to find that, at the time of this decision, the visa applicant is ‘usually resident’ in Mr Adane’s ‘household’ in Ethiopia, notwithstanding that she does not reside in Mr Adane’s ‘residence’ in Australia. Such findings depend on the evidence of whether Mr Adane has maintained dual ‘households’; one being his residence and household in Australia, and the other being his household—his family home—in Ethiopia.

27. Mr Adane gave oral evidence that the visa applicant is a part of his family. He explained that, since the time that he has known her, she has been close to him. As will be discussed further below, his oral evidence is that, since the grant of the visa to him and up until the time of this decision, he continues to send money for the visa applicant’s food, clothing and shelter. He told the Tribunal that he sends the money to his sister and that his sister is responsible for allocating that money to the visa applicant. The Tribunal asked Mr Adane about the frequency of his remittances and he said that he preferred to send a lump sum, such as 15,000 Ethiopian birr, and that he needed around two to three months to save this sum. The Tribunal asked him whether he had any documentary evidence to corroborate these claims and he said that he did and that he could provide it after the hearing.

28. On 25 July 2019, after the hearing, the review applicant submitted a statement from Olympic International in Footscray, dated 24 July 2019, in Mr Adane’s name evidencing 23 money transfers from him to ‘Mebrat Nega’ from 30 August 2017 until and including 24 July 2019. The Tribunal notes that money was transferred regularly, although it varied in amount. The Tribunal gives weight to this documentary evidence.

29. On the basis of the evidence before it, the Tribunal is satisfied that Mr Adane has maintained dual households and that, at the time of this decision, the visa applicant is usually resident in Mr Adane’s household in Ethiopia, not his residence in Australia.

30. The Tribunal is satisfied that r.1.12(1)(e)(ii) was met at the time of application and continues to be met at the time of this decision.

    At the time of application, was the visa applicant dependent upon Mr Adane? Now?

31. The delegate was not satisfied that the visa applicant met r.1.12(1)(e)(iii).

    The law

32. The term ‘dependent’ is defined in r.1.05A. This relevantly provides:

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; …

33. The Full Court of the Federal Court considered the application of r.1.05A in Vo v Minister for Home Affairs [2019] FCAFC 108. The Court observed, at [20]:

    … the definition stated in reg 1.05A has both a temporal and qualitative element. The temporal element is that period being ‘a substantial period immediately before’ the time ‘when it is necessary to establish whether the first person is dependent on the other person’. The qualitative element is the degree of dependency or reliance. Therefore, in order to satisfy the clause, the person claiming to be a dependent must show that during the relevant period they were wholly or substantially reliant on the first person. Further, it must be shown that at the time when it is necessary to establish dependency, the reliance on the first person was greater than the reliance on any other person.

    Consideration of r.1.05A(1)(a)(i)

34. The delegate was not satisfied that the visa applicant met the requirement in r.1.05A(1)(a)(i) for two reasons.

35. First, the delegate was not satisfied as to the required period of dependency. In the primary decision, the delegate noted that the review applicant and Mr Adane became engaged on 2 November 2014 and that the review applicant claims that the visa applicant started residing with the visa holder on 18 November 2014. The delegate then stated:

    Given the chronological span of events in that the sponsor got engaged to the main applicant in November 2014, the secondary applicant moved to reside with the main applicant the same month and in less than one year the application was lodged, I am not satisfied that the secondary applicant meets Reg 1.05A(1)(a)(i)[.]  

36. This finding reflects the Departmental guidelines (PAM 3) which state that usually a ‘substantial period’ is taken to be at least 12 months. At the time the application for the visa was made, on 11 September 2015, the claimed reliance was just short of 10 months.

37. The Tribunal notes that there is no definition in the Regulations of what constitutes a ‘substantial period’. However, in the context in which ‘substantial’ is used in r.1.05A it has been held that it should be understood to mean a lengthy period.[2]

    2Huang v MIMA [2007] FMCA 720 (Cameron FM, 16 May 2007) at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in r.1.03. His Honour stated, at [44], that a ‘reasonable period’—which was the term used in that context—need not be lengthy.

38. As noted earlier, Departmental policy is not binding on the Tribunal and the Tribunal must ensure that the Departmental guidelines are not treated as a legislative requirement.

39. Having considered the matter, including the factors identified in Zeng v MIMIA[3] as being relevant to the consideration of whether the dependence was for a ‘substantial period’, the Tribunal takes a different view to the delegate and considers that the period of claimed reliance—just under 10 months—immediately before the lodgement of the application for the visa constitutes a ‘substantial period’ for the purpose of r.1.05A(1)(a)(i). 

    [3] [2005] FMCA 546 (Riethmuller FM, 27 January 2005).

40. The second reason that the delegate considered that the visa applicant did not meet r.1.05A(1)(a)(i) was because he found that there was no evidence that the visa applicant was wholly or substantially reliant on Mr Adane for financial support. The delegate explained:

    The sponsor sends funds to the main applicant and as such this additional financial support for basic needs comes from the sponsor and not the main applicant. Therefore it is evident that the [visa applicant] is not wholly or substantially reliant on the main applicant for food and shelter.  

41. In the review applicant’s signed statement, delivered to the Tribunal on 2 March 2017, the review applicant stated:

    Mr Amdemichael my husband was employed and financially was capable to run his life and provide full assistance for Miss Selam. The amount of money I sent him was very small amount that can be used for minor needy expenses. Since the time that Miss Selam started to live with Mr Amdemichael she was not financial dependent on me but was fully dependent on Mr Amdemichael my husband. The evidence to that is, when it is compared to the time that she (Selam) lived with Mr Amdemichael and the amount of money that I sent to him was very small.

42. At the hearing, the review applicant gave consistent oral evidence. She told the Tribunal that, at the relevant time when both Mr Adane and the visa applicant were living together in Ethiopia, Mr Adane was the person who provided financial support to meet the visa applicant’s basic needs for food, clothing and shelter. The visa applicant also gave consistent oral evidence in this regard.

43. The review applicant told the Tribunal that, at the time, Mr Adane had been working for an engineering company and was being paid in excess of 8,000 Ethiopian birr per month. She gave oral evidence that this was a good salary. She said that, at the time, sometimes she had sent money back to Ethiopia, including by way of friends, but that the sums that she sent back were insignificant, and reiterated that Mr Adane had sufficient salary. She said that she sent the money back for the visa applicant’s use, in case she had needed something special.  

44. Mr Adane gave consistent oral evidence. He explained that, at the time when he had been living in Ethiopia, he had a job and he—not the review applicant—was the person responsible for the visa applicant. He gave details of his employment in the engineering company. He told the Tribunal that at the time that he left that job he was earning 14,000 Ethiopian birr per month which he stated was the ‘highest level’. He acknowledged that sometimes he and the visa applicant received money in Ethiopia from the review applicant in Australia. However, he said that he was the person who met most of the visa applicant’s basic needs for food, clothing and shelter.

1. The Tribunal notes that the Department’s file contains three remittances of money from the review applicant to Mr Adane on 15 February 2013 ($200.20), 7 May 2015 ($369.90) and 5 July 2015 ($500.18). The Tribunal notes that all of these remittances were prior to the lodgement of the visa.

2. When the Tribunal asked the review applicant to comment on the delegate’s concern about the lack of documents to corroborate Mr Adane’s financial support of the visa applicant, the review applicant replied that, in Ethiopia, receipts are not given for the purchase of food and clothing. Similarly, Mr Adane also gave oral evidence that, in Ethiopia, cash is used to pay for ‘everything’.

3. Having had the advantage of hearing oral evidence from both the review applicant and Mr Adane in person, and the visa applicant by telephone from Ethiopia, the Tribunal found them to be credible and accepts the veracity of their oral evidence about the matters outlined above.

   Consideration of r.1.05A(1)(a)(ii)

4. The Tribunal notes that the delegate had not been satisfied that the visa applicant met r.1.05A(1)(a)(ii). This appears to have been a consequential finding stemming from the delegate’s finding that the visa applicant did meet r.1.05A(1)(a)(i).

5. Mr Adane gave credible oral evidence that, from the time that the visa applicant started living with him in his family home, including at the time of application, and right through until the time of the hearing, he had been and continues to be the main person providing financial support to meet the visa applicant’s basic needs for food, clothing and shelter.

6. The Tribunal has no reason to doubt the veracity of this oral evidence.

7. For instance, both the review applicant and the visa applicant gave credible oral evidence that the visa applicant is an orphan.

8. When asked about the financial arrangements at the time of the hearing, the review applicant told the Tribunal that the visa applicant is training to become a hairdresser and earnt no income. The visa applicant gave consistent oral evidence in this regard. The review applicant said that both she and Mr Adane sent money to Mr Adane’s sister Mebrat to expend on looking after the visa applicant. The visa applicant also gave consistent oral evidence in this regard.

9. The Tribunal asked Mr Adane whether Ms Mebrat Nega Adane worked and he replied that she did. The Tribunal then asked him whether some of Ms Adane’s earnings were expended on the visa applicant. He gave oral evidence in the negative, stating that ‘we’ are ones sending the money that the visa applicant requires. He clarified that he, not the review applicant, is the main person sending money for the visa applicant’s needs. When asked whether Mr Adane was the main person sending money for her basic needs for food, clothing and shelter, the visa applicant replied in the affirmative. She told the Tribunal that he sends the money to Mebrat.

10. The fact that the review applicant is the primary carer for two very young children—the Tribunal witnessed the breastfeeding of the youngest child during the hearing—suggests that it is highly unlikely that, at the time of this decision, the review applicant rather than Mr Adane is the main provider of financial support to the visa applicant for her food, clothing and shelter.

    Conclusion with respect to r.1.05A

100.   Having considered all of the evidence that is before it, the Tribunal accepts that, for a substantial period immediately before the date that the visa application was lodged and up until the present day, the visa applicant was and continues to be substantially reliant on Mr Adane to provide for her basic needs for food, clothing and shelter and that this reliance is greater than her reliance on any other source of support. The Tribunal considers that both the temporal and qualitative elements within r.1.05A(1)(a)(i) and (ii) are met. Accordingly, the Tribunal takes a different view to the delegate and is satisfied that r.1.12(1)(e)(iii) is met both at the time of application and at the time of this decision.

CONCLUSION

1. As the Tribunal has found that, both at the time of application on 11 September 2015 and at the time of this decision, r.1.12(1)(e)(i)–(iii) were and continue to be met, the Tribunal finds that, at the time of application, the visa applicant was a member of the family unit of Mr Adane and that, at the time of this decision, she continues to so be.

102.   Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 300 visa. 

DECISION

103.   The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.311 of Schedule 2 to the Regulations

·cl.300.321 of Schedule 2 to the Regulations

Justine Clarke
Member